This case is here on writ of certiorari to the Supreme Court of the State of South Carolina.

Petitioner, Louis Bostick was convicted of murder during the February, 1962 term of the Court of General Sessions for Jasper County, South Carolina.

The Supreme Court of South Carolina later affirmed that has conviction and sentence of death.

Thereafter, petitioner filed in the Court of Common Pleas for Richmond County, South Carolina has petitioned for writ of habeas corpus, alleging that the grand jury which indicted him and the trial jury which convicted him were so conveying as to systematically exclude there from members of the Negro race of which race the petitioner is a member.

The evidence presented on this question is perhaps somewhat brief but we think sustains the allegation that there is in fact discrimination shown by the record here that a prima facie case of discrimination has been set forth.

That evidence is that for a period described variously by the witnesses ranging from eight to nine years, only one Negro in the memory of the various witnesses had been called to serve on the grand jury of that county.

The evidence also is that in 1962 at which time this indictment was returned, there were 947 qualified male electors in Jasper County, who were white, and that there 246 qualified Negro male electors.

In South Carolina, jury lists are made up from the list of qualified male electors.

Justice Byron R. White: How are they made up?

Mr. Matthew J. Perry: They're selected pursuant to the South Carolina constitutional provision that qualified male electors that is to say males over the age of 21 and less than the age of 65.

Justice Byron R. White: It doesn't contain how it directly chose physically, how they select the names from the registered voters list?

It is the voters list?

Mr. Matthew J. Perry: That is correct, sir.

Justice Byron R. White: How do they go about that?

Do you know?

Mr. Matthew J. Perry: Well, the testimony of the clerk of court Mr. Sensenbach set forth at various places in the record and particularly on pages 66, etcetera --

Justice Byron R. White: Now, it doesn't -- it -- they never get around to say how exactly how they do it?

Mr. Matthew J. Perry: Oh, yes.

Well, may I refer you Mr. Justice White then to the opinion of the Supreme Court of South Carolina which I believe sets forth more succinctly the manner in which the juries are convened in that state, set forth that page 118.

Justice Byron R. White: But now they have a list of registered voters, what mechanical process -- what process do they go through to actually select the -- a portion of the male electors from that registered voters list?

Mr. Matthew J. Perry: Once a year, that is to say, in the month of December of each year, the jury commission which is comprised of the clerk of court, the treasurer and the auditor of each county convene themselves for the purpose of selecting the grand jury, the grand jury for the ensuing year, and prior to the beginning of each term of Court during the course of the year.

The jury commission likewise convenes for the purpose of selecting the various venires.

During that December meeting of the jury commission, they take from the registration roles of each county a certain --

Justice Byron R. White: They actually have roles before them?

Mr. Matthew J. Perry: That is correct.

Justice Byron R. White: With the names on it and their addresses?

Mr. Matthew J. Perry: Yes, sir.

Justice Byron R. White: And the racial designation?

Mr. Matthew J. Perry: And the racial designation.

Justice Byron R. White: So, they know -- they know the race of those of the people whom they collect from the registered voters list?

Mr. Matthew J. Perry: They know that because race is clearly designated on the registration duplicates.

Justice Byron R. White: If one of this is not by lot of them -- of the -- of that list, is it?

Mr. Matthew J. Perry: It is not by lot --

Justice Byron R. White: Or it is by any -- every tenth name or every second name or?

Mr. Matthew J. Perry: No, sir.

Justice Byron R. White: It's not a random choice of the list?

Mr. Matthew J. Perry: Well, it is random but the jury commission is required by the law to select two-thirds of the qualified male electors of each county.

Justice Byron R. White: Alright, to put it -- to put in the jury box.

Mr. Matthew J. Perry: To put in the jury box.

And --

Justice Byron R. White: So, how they go about throwing out the one-third?

Mr. Matthew J. Perry: This is done through various actions on the part of the jury commission based upon such things as a would-be jurors profession such things as the feeling that he is possibly not qualified by reason of his failure to possess the necessary good character requirement.

Justice Byron R. White: How about race?

Mr. Matthew J. Perry: We submit that the record here indicates an opportunity to discriminate on race as was found by this Court in Avery versus Georgia from that factual situation.

Justice Byron R. White: Was there -- is there any testimony to show actually what proportion of Negroes and whites actually got into the jury box?

Mr. Matthew J. Perry: Yes, sir.

The testimony of --

Justice Byron R. White: When you select the two-thirds out of -- of the jury off of the registered voters list, once that two-third goes into the jury box that, they could be proportioned there in the jury box?

Mr. Matthew J. Perry: Well, the clerk of court testified that he and the other jury commissioners made a conscious effort to maintain a certain proportion at representation.

Justice Byron R. White: Do you accept that?

Mr. Matthew J. Perry: Well, of course, we --

Justice Byron R. White: And I know you say that even if that so, that's invalid selection but do you accept the fact they did put into proportion?

Mr. Matthew J. Perry: Well, of course, the only evidence on that point is the testimony of the clerk of the court.

Justice Byron R. White: But you don't accept or do you accept or?

Mr. Matthew J. Perry: Well, of course, we --

Justice Byron R. White: What do you care with that?

Mr. Matthew J. Perry: I'm not at all sure that makes a great deal of difference in the context of the record before the Court at this time because we believe that this record establishes a prima facie case of discrimination in the selection of the jury based upon the fact, that over a long period of time, only one Negro had been called to serve upon the grand jury of that county.

And based upon the various population ratios in 1960 for example, that is shown by the 1960 Census over 2,689 adult-white persons in Jasper County, South Carolina and that there were 3,333 Negro citizens in that county.

And that of the qualified male electors from which group members of the jury are selected that Negroes comprise according to computation set forth in the state's brief approximately 21% of the total persons in the jury box.

Justice Abe Fortas: It may -- may not correctly coalesce.

Are you telling us that only one Negro is selected for the grand jury at any time in the -- his list so far as this record shows?

Mr. Matthew J. Perry: We think the record supports that and we refer the Court to pages 66 and commencing at that point forward, to the testimony of clerk of court, Mr. Sensenbach, who testified.

First of all, that there was one Negro on the grand jury which invaded petitioner during the February 1962 term of the Court of General Sessions for that county.

Now, his testimony --

Justice Abe Fortas: Yes, I'm -- I remember that but he was asking about the February term of Court of the grand juries over a period of time.

But then as I understand it there are six -- that there are six terms of the Court each year?

Mr. Matthew J. Perry: That is correct.

But we have only one grand jury.

Justice Abe Fortas: Is there anything -- that -- oh, you have only one grand jury?

Mr. Matthew J. Perry: For the entire year.

Justice Abe Fortas: I see.

I didn't understand that.

Mr. Matthew J. Perry: But approximately six terms of the Court convened during the course of the year.

Now, this of course includes the civil and criminal term.

I believe that the criminal terms in that particular county would probably not be more than three terms.

They -- a winter term, a summer term, and a fall term.

Justice Abe Fortas: Well, my -- my notes which may be incorrect to the fact that his testimony that then the 1959 term, there was one Negro in the grand jury panel, 1960 term possibly one Negro, and 1962 term which was when petitioner was tried the one Negro in the grand jury trial, and similarly in 1963 one Negro in the grand jury panel.

And here, you're telling me now that the record shows the contrary?

Mr. Matthew J. Perry: We think the record shows contrary to that Mr. Justice Fortas.

We refer the Court to -- with respect to the 1961 term of the Court, to the bottom of page 66 and the top of page 67, during which time the clerk of court testified that he could not identify any Negro among the list of grand jurors.

We refer the Court to about the middle of page 67, where the clerk of court testified that he could not identify any Negro on the grand jury for 1960.

Go to the bottom of page 67, where the -- with respect to the 1959 grand jury, the clerk of court thought he recognized one of the names of -- one of the jurors as a Negro but stated that this could have been a white person since in some instances in that county some Negroes have the same names of which some white persons has.

So, he wasn't positive in his identification.

Justice Abe Fortas: I didn't read that testimony that way but I may be wrong.

But I -- I understand your position, but I want the entire point.

Mr. Matthew J. Perry: And if you will go back to page 68 of the top of the page with respect to 1958, the clerk of court does not recognize any Negro included on the grand jury during that term.

Now, --

Justice William J. Brennan: Well, Mr. Perry in the middle of 68, is the question whether you've seen the grand jury sitting since 1958 with more than one Negro sitting on that jury or more than five is that your -- I don't think more than five.

I don't think in a grand jury there's been more than one or two at any one term that I can recall.

Are we to take that to say that since ‘58 in each term there has been at least one or maybe two each term?

Mr. Matthew J. Perry: No, sir.

Justice William J. Brennan: I see.

Mr. Matthew J. Perry: We submit that if you will refer fully to the testimony of the clerk of court on this point, it was perhaps a not too accurate use of the semantics involved on the part of the interrogator and the witness himself.

In giving the answer to that question, we do not think reflected what actually is seen from a whole reading of the record here.

Justice William J. Brennan: Well, I gather your position is, are we dealing now since 1958 this record covered only since 1958, isn't it?

Mr. Matthew J. Perry: Well, I think that if you will look at the testimony of another witness who testified that he have visited --

Justice William J. Brennan: Well, except -- I wonder if you could tell me sir, are we dealing only with the situation since 1958 or does this record involved Negroes on the grand juries prior to 1958?

And is it -- it's your position I gather that prior and since 1958 the whole period there only been one in all that time, is that it?

Mr. Matthew J. Perry: This is what we think is reflected --

Justice William J. Brennan: But what -- and one -- some one of those terms which term, do you --

Mr. Matthew J. Perry: The February 1962 term at which time this petitioner was indicted and of course presumably throughout the entire year of 1962.

Justice William J. Brennan: At that time, there was one and that's the only time.

Mr. Matthew J. Perry: That is the only time.

Justice William J. Brennan: Up until then that's there never been a Negro in the grand jury, is that it?

Mr. Matthew J. Perry: That is correct.

The record also substantiates the statement that in 1954 in another case, a South Carolina circuit judge questioned indictment upon the ground of discrimination in the composition of the grand juries of that county.

And the clerk of court testified that the jury commission had done nothing since that time to change the manner in which they made up their jury box.

Justice William J. Brennan: May I ask you this Mr. Perry, if we would have think that this record justified a conclusion that at least one on the grand jury for each year at least since 1958 as what the evidence showed, would that change your position?

Mr. Matthew J. Perry: I don't believe so, Mr. Justice Brennan.

I think that this Court's decision and Hugh Banks and then in O'Connell would still be applicable.

Thank you.

We think, therefore, that there is a prima facie case here of discrimination and that the State of South Carolina has not met that prima facie case by any evidence which removes the prima facie showing which we have made.

Justice Abe Fortas: Well, Mr. Perry, I'd appreciate it if you would to tell me again.

This court you believe shows a systematic discrimination so far as this record is concerned.

Now, as I understand it, the list of voters, the elector's list does separate the Negro and white, isn't it?

Mr. Matthew J. Perry: That is correct sir.

Justice Abe Fortas: Now, tell me just what the record shows as this as to how that list of electors was used for the purpose of making up the contents of the jury box?

Mr. Matthew J. Perry: Well, except for reference to the opinion of the Supreme Court of South Carolina which sets forth the procedure in making up the jury lists in South Carolina and except for reference to the testimony of Mr. Sensenbach, the clerk of Court, the record is otherwise silent concerning the exact mechanics.

Justice Abe Fortas: This what bothers me in this case because Mr. Sensenbach's testimony, are you saying that Mr. Sensenbach's testimony makes out the case of systematic discrimination take that alone now?

Mr. Matthew J. Perry: Yes, Mr. Justice Fortas.

We do.

Justice Abe Fortas: Why?

Mr. Matthew J. Perry: Because Mr. Sensenbach testified variously having reduced himself from any inference of any discriminatory purpose.

He testified that notwithstanding this fact that there had been only one Negro call for the service on the grand jury.

Justice Abe Fortas: That's what I wanted to get clear.

What you're saying is that the fact that -- you're saying there was only one Negro who called for grand jury service.

Now, let's assume that for the moment.

Then you're saying from that fact regardless of the rest of Mr. Sensenbach's testimony, we should infer systematic grand jury exclusion?

Mr. Matthew J. Perry: Yes, sir.

Justice Abe Fortas: Despite the fact that in this record, he has testified by at least the record can be read.

I don't know whether I would read it this way.

But it can be read as showing his testimony to contradict the -- any systematic exclusion.

Mr. Matthew J. Perry: That is correct.

We do not believe, of course, that his protestations to the contrary removed the clear inference shown by this record.

I call to your attention also the fact that Mr. Sensenbach testified that he knew immediately when he observed the name of the prospective juror, the race of that juror, that he also knew where they lived in the county.

Now, we think of course, looking at the entire record on this point, the conclusion is apparent that the opportunity to discriminate was clear.

We think, of course, certainly we didn't have tax records which were mocked different colors as well as the case in Avery versus Georgia but --

Justice Byron R. White: I know but you had -- you had registered voters list which designated the --

Mr. Matthew J. Perry: We did have registered voter lists which designated the --

Justice Byron R. White: What -- why in this -- what's the difference between this and Whitus?

Mr. Matthew J. Perry: Well, I merely -- I merely point out that in -- well, in Whitus of course you have a situation I think of course, analogous to -- in Avery versus Georgia where the State of Georgia pursued a system of requiring different colored tax slips based upon race.

Now --

Justice Byron R. White: Which is the source of jury name at all.

Mr. Matthew J. Perry: Yes.

Justice Byron R. White: And here they have a registered voters list that separates Negroes and whites.

Mr. Matthew J. Perry: That is correct.

And add to that the fact that the -- one of the jury commissioners immediately recognizes the name of a would-be juror as a Negro.

Except in some few instances where Negroes and whites might have the same name.

Justice Byron R. White: But you would argue -- you would argue any time that the jury commissioner is that familiar with the -- with the electorate that there's the invalidity if there is not enough Negroes on the jury?

Mr. Matthew J. Perry: I believe that looking at the entire record that when we add to the fact that only one Negro has been called for service on the grand jury and you add to that fact that the states has required the registrants to be identified by race, And add to that the further fact that the -- one of the jury commissioners can immediately identify the would-be juror by his race.

All of those things taken together perhaps to paraphrase this Court's handling of confession matters, the totality of all of the circumstances, we think would lead to that conclusion.

Justice Byron R. White: Well, if -- if on every jury panel there was the exact proportion of Negroes and whites proportionate to the numbers on the jury -- on the registered voters list, what would you say in there?

Mr. Matthew J. Perry: Well, of course, the Court has certainly observed that the Constitution not only prohibits exclusion but it prohibits discriminatory inclusion.

I'm not at all sure that I would argue in favor of exact proportionate representation.

I merely say that on the fact here, we think of course, that we have discrimination affirmatively shown and we respectfully submit that the record supports that position.

I'd like to reserve the balance of our time for rebuttal.

Chief Justice Earl Warren: Very well.

Mr. Matthew J. Perry: Thank you sir.

Chief Justice Earl Warren: Mr. Brandon?

Argument of Everett N. Brandon

Mr. Everett N. Brandon: Mr. Chief Justice, may it please the Court.

We think of course that the fair reading of Mr. Sensenbach's testimony will show that he testified that there was at least one Negro on the grand jury for the period prior to the time in which Bostick was tried.

Justice William J. Brennan: You mean each term Mr. Brandon?

Mr. Everett N. Brandon: Well, we think that he said that there was usually one on the grand jury and that while the record is not entirely explicit as to each year, we think that there is the fair inference to be withdrawn from that --

Justice William J. Brennan: Was that set in 1958 of the Court?

Mr. Everett N. Brandon: Well, since 1958 and of course the petitioner has said that it refers to the time prior but there was no direct examination of any witness as to any time prior to 1958 except that Mr. Sensenbach was asked about the quashing of an indictment in 1954 and he said that, it was quashed and that after they did about the same thing.

Now, that is not to be read as if they discriminated by not putting Negroes on the jury.

That is cleared up in my judgment by the later testimony of Ms. Farley.

One of the jury commissioners and you must keep in mind that there are three jury commissioners.

They are all elected officials and rather than confining ourselves to Mr. Sensenbach's testimony, we must read it all and Miss Farley said and she was quite clear about this that the crossing of the indictment did not refer to the exclusion of Negroes but referred to the manner in which a holdover grand juror had been selected for that year.

Now, in South Carolina, we have a grand jury of 18 and six of those are held over selected by lot each year at the time the whole master jury box is prepared and while the record is not clear what she meant by that, it is clear that she in her own mind knew that it did not refer to discriminatory selection, exclusion or inclusion of Negroes.

Now --

Justice William J. Brennan: Mr. Brandon, would you tell us something I don't know whether the records clearly shows that what actually happened when they take the electors' list, what would-be grand jury?

Mr. Everett N. Brandon: Alright sir.

Our electors are in big books alphabetically.

There is no separation of Negroes or whites.

They go on there the way they're registered.

If a white comes first, he's put on there.

If a Negro is first, he comes on there.

Justice Byron R. White: But that it's designated with which race they are?

Mr. Everett N. Brandon: No question by that.

This designated by race.

Yes, that is true.

Justice Abe Fortas: But what is -- I miss that sir.

Mr. Everett N. Brandon: Sir?

Justice Abe Fortas: What is the designate --

Mr. Everett N. Brandon: The registration books which are used to select jurors are -- designated race.

Now, we submit to that --

Justice Byron R. White: Well, you don't just take everyone that comes along?

Mr. Everett N. Brandon: No, sir.

The statute requires that two out of three males be selected and this year, I think we're going to get women on there but with reference to this case, it requires two not less than two out of three males.

Justice William J. Brennan: Mr. Brandon, why is it this then the same problem we had in Whitus, if we decided on this?

Mr. Everett N. Brandon: For the simple reason sir, that if the statute is complied with and two-thirds of those eligible are placed in the jury box, those names are typed on a small piece of paper rolled up, inserted in a little pellet or a capsule thing, fastened, placed in a box, and mixed up.

There's absolutely no opportunity --

Justice Byron R. White: Well, there is in the selection of the names that go in?

Mr. Everett N. Brandon: There is in that and of course --

Justice Byron R. White: Isn't that in Whitus?

Mr. Everett N. Brandon: No, sir.

I don't think so because as I read Whitus, they used what the Court had condemned, a list condemned, and then also another list that had been supplied.

The facts I guess that separated them by color and all.

But, as I read Swain --

Justice Byron R. White: I know but why is it -- why is it the segregated pack list in Whitus, the equivalent of the racially designated registered voters list in this case?

Mr. Everett N. Brandon: Well, as I understand Whitus, they were separate in list, that Negroes in one section of whites in another.

Justice Byron R. White: But what -- but why should that make a difference as long as if you can held when they come to the designations in the race of the various people.

Mr. Everett N. Brandon: Well, it seems to me that in our system that to have the race designated on there, it would be helpful because you have an opportunity to at least get of somewhat of a proportion of representation into the jury box.

Otherwise, if it were not designated, you wouldn't know whether you had any Negroes in there or not.

Justice Byron R. White: Well, you would suggest to that person -- you wouldn't suggest that that purpose was achieved here, would you?

Mr. Everett N. Brandon: Well, there is a --

Justice Byron R. White: If there was any proportion of representation of Negroes on the jury panel, wasn't it?

Mr. Everett N. Brandon: Insofar as the --

Justice Byron R. White: What was the proportion of Negroes on the jury box?

What was the proportion of the male Negro registered -- of the qualified male Negro out of the total, four to one?

Is it four to one?

Mr. Everett N. Brandon: In about -- there were -- the testimony of the registration board, the clerk in the board was if there were 900 plus I think whites and 200 plus Negroes.

It's about four to one, I think.

Justice Byron R. White: Was it about 20%?

Mr. Everett N. Brandon: Yes.

Justice Byron R. White: Now, with 20% on the panel of the court?

Mr. Everett N. Brandon: On panels?

No, sir.

And of course, there -- on the grand jurors we got 12 and as I interpret in this record there was usually one Negro and possibly --

Chief Justice Earl Warren: What is the language of the clerk that you rely on to that effect, in the record?

Mr. Everett N. Brandon: On Mr. Sensenbach's testimony on page 71, I think that -- I believe it was Mr. Justice Brennan read that if I'm not mistaken.

Justice William J. Brennan: I think I read something in 68.

Mr. Everett N. Brandon: Yes, he answered, “I don't think on a grand jury there has been more than one or two at any one term that I can recall.”

Chief Justice Earl Warren: Well, does that -- does that say that there are one or two on every one?

He said, he doesn't remember anyone --

Mr. Everett N. Brandon: Well --

Chief Justice Earl Warren: -- whether it's more than one or two.

Now specifically, before that, he said he didn't -- he didn't -- there were none that he could recognize on ‘58, ‘59, ‘60 or ‘61?

Mr. Everett N. Brandon: No, sir.

I will call the Court's attention to page 67 and he refers to the list of February 1959 and he says, there's one colored here, I have ran onto already Tony Brown.

And we have another one here who might be called.

Chief Justice Earl Warren: Who might be?

Mr. Everett N. Brandon: Yes.

Chief Justice Earl Warren: Yes.

But I also -- there's one for ‘61 and he said, if there's a Negro on there.

I don't recognize it.

I have looked at them hardly.

I know every man on here personally --

Mr. Everett N. Brandon: Yes, sir.

Chief Justice Earl Warren: -- and so forth that whether in relation with the other.

We'll recess now and you can --

Mr. Everett N. Brandon: Yes, sir.

Chief Justice Earl Warren: -- answer that after.

Mr. Everett N. Brandon: Mr. Chief Justice, may it please the Court.

At time we had adjourned, you had just asked a question.

I wonder if I might ask you to repeat that or do you recall just what you said?

Chief Justice Earl Warren: My question was, I believe, I asked it two I think.

But I think my question at that time was that, where do you find in the testimony of Mr. Sensenbach the précised language to the effect that there was one or two on every grand jury?

Mr. Everett N. Brandon: I do not believe that that précised language is in the record any more than the précised language that there was only one Negro on the grand jury at any time in the county.

Now on 68, I referred to that where he said, “I don't think there's been more than one or two at any one term that I can recall.”

Chief Justice Earl Warren: Yes.

Mr. Everett N. Brandon: And then on 71, so that at most you have only been able to observe one Negro serving on the grand jury at one time, is that correct?

Chief Justice Earl Warren: His answer was?

Mr. Everett N. Brandon: In my recollection.

Chief Justice Earl Warren: Now, but the counsel pointed out on pages 66, 67, and 68 certain answer of citizen which says this witness said, first concerning was February 1961 grand jury, if there is a Negro on there I don't recognize it.

I've looked at them hardly.

I know every man on here personally and he said that he didn't.

Then, again on 67, I'll show you the grand jury list and the petty list for the term 1960 of the general session's court.

May I ask you to take your time, sir, and see whether or not you could identify any of these are Negroes?

I don't recall the 1960 this particular jury but we have one man there by the name of Seblest.

There is one colored here that I have run onto already come Tony Brown.

We have another one here who might be colored but I think it is a white one and so on.

Now, the fact to the answers, there never was more than or two when the question was asked it shouldn't follow, should it, that there was one or two in every panel?

Mr. Everett N. Brandon: Not necessarily, except with and the general context of his testimony, he said that there were -- that Negro served on the grand juries and Negro served on the petty juries and in varying numbers.

It does --

Chief Justice Earl Warren: In what kind the numbers?

Mr. Everett N. Brandon: In varying numbers.

I think you said in two -- I think you had one term there was six on the petty jury.

Justice Hugo L. Black: A grand -- of grand jury?

Mr. Everett N. Brandon: Petty jury.

Now, --

Justice Hugo L. Black: But suppose -- suppose there was only one on each one, could that be any different to having none on each one but the percentage of white and colored people that lived in the county?

Mr. Everett N. Brandon: Well, Mr. Justice Black, the -- of course, the percentage of white and colored is fairly equal or maybe a little more colored.

But prior to the last few years, the colored were not registered in the numbers that the whites were.

For instance, back 10, 15 years ago, while they were allowed to register and if -- there's testimony in the record that they were kept from it.

They just didn't do it, so they --

Justice Hugo L. Black: Although, there may have been testimony in the record, they were not kept from it but the history shows they were kept from it?

Mr. Everett N. Brandon: Well, I think it does show that it has been done in some places but I don't know that history shows it was done in Jasper County, South Carolina.

Justice Hugo L. Black: Why do they need separation of the colors in determining the elector?

Mr. Everett N. Brandon: I --

Justice Hugo L. Black: What's the reason for this?

Mr. Everett N. Brandon: I don't know.

I don't know, sir.

I can't answer that question.

As you know and as the Court knows, that's just been customary to do that.

Justice Byron R. White: Well it's not --

Mr. Everett N. Brandon: -- and not only in that but in other --

Justice Hugo L. Black: It's been utilized, hasn't it, as a means to keep them from serving on the jurors and voting.

Mr. Everett N. Brandon: I do not believe that has been used in Jasper County, South Carolina.

No sir, not --

Justice Hugo L. Black: You do not believe you can use that?

Mr. Everett N. Brandon: No, sir.

I do not.

Justice Hugo L. Black: But have you read the Whitus case?

Mr. Everett N. Brandon: Yes, sir.

Justice Hugo L. Black: What about it?

Mr. Everett N. Brandon: Apparently was used that

Justice Hugo L. Black: What?

Mr. Everett N. Brandon: It apparently was, yes, sir.

I will have to agree with you.

Justice William O. Douglas: Do you have a statute?

Mr. Everett N. Brandon: Sir?

Justice William O. Douglas: You have a statute on the keeping of the records or perhaps to be designated by race?

Mr. Everett N. Brandon: On the registration records?

Justice Tom C. Clark: Yes.

Mr. Everett N. Brandon: Yes, sir.

Justice Tom C. Clark: That's the same as Whitus, they have the statue?

Mr. Everett N. Brandon: Well, of course as I reach Whitus and I said this before it's been up here a couple of times and if -- as I read it when they prepared the last jury list, they used the list that has bee prepared from a so-called tainted source, plus the designation from the tax list.

Now --

Justice Tom C. Clark: In the tax list, they were designating just figured that?

Mr. Everett N. Brandon: Want to see or colored?

Justice Tom C. Clark: Yes.

Mr. Everett N. Brandon: Well, they're also separated into colored, different colored type in, if this part of the books and want it.

Justice Tom C. Clark: Do they had a statute with each -- each person had the power return.

And the return was put different colors according to race, the whites in one book and colored one at another book that the tax digest itself from which the jury was selected held a designation of the C.

I saw a small c after the name which would -- it is shown, it was meant the colored.

Mr. Everett N. Brandon: Yes.

Well --

Justice Tom C. Clark: That was the same as yours as I understood you to say, and this from which the jury was selected did have a designation?

Mr. Everett N. Brandon: From which the box was filled.

Justice Tom C. Clark: Yes.

Mr. Everett N. Brandon: I -- I will certainly concede that that designation puts the situation into such a -- into such a condition that it could be abused.

That is -- that would be permissible.

Justice Tom C. Clark: As we said in Whitus by all that jurors except anything now to see there after those designations, was it?

Mr. Everett N. Brandon: I read that.

Justice Tom C. Clark: We said the potential of it, probability of it as it there and therefore we have struck them in?

Mr. Everett N. Brandon: Yes, sir.

Well, I would call the Court's attention to this record that from the testimony of Mr. Sensenbach that they made an effort to put a proportion of the Negroes and proportion of the number of whites in the jury box itself in the little pellets from which it has not been questioned that there can be discrimination thereafter.

Now, the other member of the jury commission, who testified -- who testified that they did not do it in proportion that -- but that they went down the list and made a bona fide effort to get two out of three without regard to the race, but that in her judgment there were substantial Negroes placed in the jury box.

Now, I believe that the record would support or at least that would be a rebuttal to a prima facie indication of discrimination, if such is found in this case.

Justice Hugo L. Black: You don't really -- why wouldn't more turn off in the box?

Mr. Everett N. Brandon: Sir?

Justice Hugo L. Black: If there -- why wouldn't more turn off in the box to serve.

Mr. Everett N. Brandon: Well --

Justice Hugo L. Black: If they had made that which is all required genuine, bona fide effort on the part of the state under the decision of this Court back by 1887.

Mr. Everett N. Brandon: Yes, sir.

Justice Hugo L. Black: To see that they have put on the jury?

Mr. Everett N. Brandon: If Your Honor please, this record doesn't cover every term of Court for every year since 1958.

It usually just refers to one term and does not go down through the whole six terms of civil and criminal court that might be held in the county in its various parts.

It's not -- not complete at all in that regard.

Now, there is testimony that has many as six, Mr. Sensenbach said, had been drawn on the petty jury.

Now, the maximum --

Justice Hugo L. Black: How many of them have served?

Mr. Everett N. Brandon: None sir, on this case --

Justice Hugo L. Black: But any of them served on any case?

Mr. Everett N. Brandon: I can assure the Court that Negroes served on juries in Jasper County.

Justice Hugo L. Black: How many have served according to the record?

Mr. Everett N. Brandon: This record?

Justice Hugo L. Black: Yes.

Mr. Everett N. Brandon: That no effort has been made to determine that that I know of to that number.

Actually served on the --

Justice Hugo L. Black: I'm asking you -- I'm asking you these questions for this reasons.

It's not to the state's interests, it's not to the Court's interest, set aside cases not based on the merits but based on the facts that the state does not put for fair proportion of colored people on the jury.

What is the answer to having the states do that genuine?

Mr. Everett N. Brandon: Well --

Justice Hugo L. Black: Genuine bona fide effort but you don't have to use microscope to find them.

Mr. Everett N. Brandon: If Your Honor please, I can only call your attention to the fact that this Court has never found jury discrimination in the case of South Carolina to my knowledge and that goes back to Franklin against South Carolina in 1910.

I do not believe that there's jury discrimination in this particular case.

I will not stand here and argue that.

Now, in the beginning, my argument, I believe I said that we draw, only draw 12 new grand jurors each year.

And assuming that one of those is a Negro, that is one-twelfth from the eight of 10% and at varying times --

Justice Hugo L. Black: Is that enough?

Mr. Everett N. Brandon: It may not be enough but it seems to me, it certainly doesn't qualify proportionately which as I understand it, it is not required.

It does not necessarily or even desire them.

Justice Hugo L. Black: The requirement is that there'll be a bona fide efforts made to give a fair representation of the colored people on the jury.

Mr. Everett N. Brandon: Yes sir.

Now, in order to do that I would submit that our procedure whereby we designate them on the registration rolls would work to that end.

Justice Hugo L. Black: But why shouldn't we get away with that political designation?

Mr. Everett N. Brandon: Sir?

Justice Hugo L. Black: Designating and dividing them up into one color, what's the reason for that if not just that?

Mr. Everett N. Brandon: Well, if you just ask me sir why?

How can we see that we get --

Justice Hugo L. Black: I have said you're not just to read -- I understand you're not responsible for the system and I maybe I question too much?

Mr. Everett N. Brandon: No, sir.

Of course, I'm not responsible for the system but I am defending it and I think it works pretty well in South Carolina.

I think that this case is just sort of an offshoot that has been picked up where there is an indication or sort of a braggadocio attitude on the part of one clerk of court.

I know the gentleman.

And I think he just got in this year and he was going to say that I know 90% of the Negroes in Jasper County and I in my mind know that that is not true.

He doesn't know 90%.

I'm not reading here any -- any facts.

Justice Hugo L. Black: I would think it is already where --

Mr. Everett N. Brandon: It's not true -- I would think that probably this Court doesn't know 90% of employees that work here and that I don't know 90% of the people that work in the highway department.

We've only got 500 in the headquarters in Columbia.

It's just an act of prior again on this part and I've been stuck with it for several years.

I do submit that the prior testimony in the record on behalf of Ms. Farley clears up several things that Mr. Sensenbach said that they don't necessarily jive.

Now, we could have had better proof of what happened in 1954 but nobody knew that was going to be an issue until the petitioner asked him about the pausing of the indictment in the 1954 and he comes right back and says, we did exactly the same after that.

If he had been discriminating then purposely, invidiously, would he have said that?

Or if -- if he was purposely and invidiously discriminated, would he say that I know 90% of the Negroes in Jasper County and thereby lay himself open to the charge that went -- that he can manipulate him as he saw fit.

Now, of course, we do have the other jury commissioners and I just don't think that it's possible under the system that we have public drawing for the petty jury list that it can -- you can lay aside one and hold out until you can pick one that is right that you need.

They are in capsules and you can't tell until you unfold.

And as I said in answer to your question a few moments ago that, I don't believe in percentages but if one out of 12 has been with any degree of consistency, several years out of the -- out of eight to 10, that is eight or 10 or 12% of whatever it is and back then they might not have been that many registered Negro male electors in the box.

And of course, it's increasing along as to the numbers and the question would -- as it should be.

If it is a fair system, if they are giving the Negroes a chance to serve on the jury when that charge of this kind is made that is the charge of invidious discrimination, I would think it would be very easy for the state to have someone there who could say, that is not a fact because we know every Negro that's on this jury because we picked them from the voting register and the voting register designates them Negroes or white.

And then show in the preceding how many have served.

How many have been called but nothing with that kind is brought into the record by the state.

All that comes out is what these folks on the other side are able to drag out of the clerk of the court and the commissioners.

Now, why couldn't the state say very frankly, we have so many on this jury, we have so many on the other and as a result, there is more invidious discrimination?

Mr. Everett N. Brandon: Well, the only answer I can make to that is Your Honor is that lawsuits are tried sometimes a long way from the way place where the principal case was tried and in this instance it was in Columbia.

And lawsuits are sometimes sloppily tried, that happens.

Chief Justice Earl Warren: But when a man's -- what a man's life is in jeopardy, they shouldn't be sloppily tried that way?

Mr. Everett N. Brandon: Well, they -- I certainly agree.

Referring to one or two other cases, of course, the Court at all is entirely familiar with those cases where one Negro was picked on the grand jury in 18 years and one in 24 or one out of 600 and that sort of thing.

We don't think that that situation exists here.

We would refer to the case of Swain against Alabama, where the -- I think the overall percentages and variances and what not are not a great deal different from that in the principal case and this Court upheld that.

And there is a statement in Swain that apparently a little effort in Alabama was made to ensure that all groups were represented upon the jury list.

And I would submit that under our practice of taking them from a registration list was to show white and colored.

And if that is fairly followed that that would be the best way to ensure that there are representative numbers of Negroes in the jury box and then you mix them up amd --

Chief Justice Earl Warren: How would that be would you say, I didn't get it?

Mr. Everett N. Brandon: I say that if that is followed fairly.

Take two-thirds as our statute requires of all eligible male electors from the registration votes.

Even if you take two-thirds colored and two-thirds white which I don't think would be entirely proper but if that were done, what complaint could be made if they are all put in the box and mixed up and thereafter there's no opportunity for discrimination as I --

Justice Hugo L. Black: That is the electors.

That would depend on the fairness of the filling by the electors, wouldn't it?

Mr. Everett N. Brandon: By the actual registration itself.

Yes sir.

They're of course, it would depend on that.

I believe there's no question of that race in this case and I --

Justice Hugo L. Black: But it comes into it of course when you may use of that as basis?

Mr. Everett N. Brandon: Yes.

It could come into it but I certainly -- in South Carolina this doesn't exist.

Now, Your Honor as far as prohibiting anybody from registering and I'm certain that counsel here will assure the Court that that is true.

Of course, if you want to cheat, you want to be crook, there's opportunity and there's lots, lots of places.

In closing, I would just like to say that I do not believe that this record should be used to hang the first jury discrimination case around the State of South Carolina in view of the fact that there has never been one up until now.

Thank you.

Chief Justice Earl Warren: Mr. Perry.

Rebuttal of Matthew J. Perry

Mr. Matthew J. Perry: Mr. Chief Justice, may it please the Court.

A few words in reply.

May I refer the Court to page 30 -- page 29 of the transcript of record with respect to the testimony of the witness of Willie Martin?

Mr. Martin have testified that he have been attending the courts for eight or nine years and that during this entire period, he had seen only one Negro serving on the grand jury and that was during the February 1962 term of the Court of General Sessions for Jasper County.

He -- this witness placed to the highest number of Negroes who served on the petty jury of that county at two.

This testimony also appears at page 29.

And over on page 67, the bottom of page 67 and on the top of page 68, where the witness Mr. Sensenbach referring to the grand and petty juries for 1959, there has been some question about whether there were Negroes on the grand jury during that period.

Chief Justice Earl Warren: 1960?

Mr. Matthew J. Perry: 1959, I believe at the bottom of --

Chief Justice Earl Warren: 1959?

Mr. Matthew J. Perry: Yes, sir.

Chief Justice Earl Warren: Oh, yes.

Mr. Matthew J. Perry: And going over to the top of page 68, Mr. Sensenbach answered the question concerning the inclusion of two names on the 1959 jury, whom he recognized as Negroes.

At the top of page 68, the question was, “And you identified those as being on the petty jury? His answer was, “That is right sir.”

So, this record does not support the statement that there were at any time more than -- that there were any Negroes on the grand jury during any period other than during the 1962 grand jury which indicted petitioner in this case.

Justice Abe Fortas: Mr. Perry, are you suggesting that Mr. Martin's testimony is in parallel to a lot of weight.

I notice that he asked if there had been attendance for claiming degree of regularity in the court sessions.

Instead, they usually draw about once or thrice a year and I shouldn't -- it might be a little doubt as to whether his testimony is absolutely complete, he's been in court once or twice a year.

Mr. Matthew J. Perry: That -- that certainly might arise some doubt concerning the weight which the Court might like to put on that testimony.

But we suggest to the Court that it is the only testimony in the record and over on page 30 of the transcript, the Assistant Attorney General of South Carolina in cross-examining this witness and in endeavoring to make him more specific inquired about the middle of the page, the lower middle of the page, “Was there anything unusual about this particular trial?”

He said, “Unusual?”

The question is in reference to other trials and the answer of the witness was, “Just one Negro was on the grand jury that is all that was unusual.”

Justice Abe Fortas: I think that anything said rather is it?

Mr. Matthew J. Perry: Well, sir, we submit that it is evidence that --

Justice Abe Fortas: You don't have the grand juries operating in public do you?

Mr. Matthew J. Perry: The grand jury comes out and makes its reports in the open courtroom and of course spectators can indeed ascertain the make up of the grand jury.

There they're when they're being given the charges in the case, when they're being handed with newly prepared indictments and they come out periodically to report their findings to the Court.

And any spectator in the Court can readily ascertain the makeup of the grand jury.

Justice Hugo L. Black: What was the largest city on this county?

Mr. Matthew J. Perry: Richland I believe the county seat is the largest city in that county.I --

Justice Hugo L. Black: And at what population?

Mr. Matthew J. Perry: I'm sorry.

I do not recall that.

Perhaps Mr. Brandon can assist us with it --

Rebuttal of Everett N. Brandon

Mr. Everett N. Brandon: I would certainly think if not more than 2,500 possibly without --

Rebuttal of Matthew J. Perry

Mr. Matthew J. Perry: That comforts with my --

Justice Hugo L. Black: That's the largest town in there.

Do they have good colored schools there?

Mr. Matthew J. Perry: Well of course, the schools have been improving to some extent but I'm afraid that they got a long way to go.

We are of course concerned in some respects with the schools of that county now.

They of course -- they failed to put it mildly sir.

So gentlemen of the Court, the heart of our case is that the petitioner here has made out a prima facie case of discrimination just as was the case in Whitus versus Georgia.

And just as was the case in Whitus versus Georgia, the state here has not come in and offered any comfort of evidence to meet or to disprove the prima facie case which we think the record in this case shows.

Chief Justice Earl Warren: Do you cite the case of Whitus in your brief?